Montana abortion laws remain blocked during legal challenge

HELENA, Mont. (AP) — The Montana Supreme Court on Tuesday upheld a lower court ruling that temporarily blocks three abortion laws passed by the 2021 Legislature from taking effect while legal challenges play out.

The ruling prevents the state from enforcing laws that ban abortions beyond 20 weeks, eliminate tele-health services for medication abortions and mandate that an abortion provider offer patients the opportunity to listen to the fetal heart tone or view an ultrasound 24 hours before performing an abortion.

The case, filed by Planned Parenthood of Montana, now goes back to District Court in Yellowstone County for a full trial on the merits.

The Montana Supreme Court found that District Court Judge Michael Moses of Billings was right to rely on its 1999 Armstrong decision in granting the preliminary injunction. The Armstrong decision holds that laws interfering with bodily autonomy violate the state Constitution’s right to individual privacy.

Moses granted the preliminary injunction in October 2021, finding that based on first impression the laws appeared to be unconstitutional.

The state, represented by Attorney General Austin Knudsen, appealed the injunction in January and also asked the Montana Supreme Court to overturn the Armstrong decision.

Justices said Montana’s preliminary injunction standard prohibits courts from ruling on the underlying merits of the case, so it did not consider the request to overturn Armstrong.

The purpose of a preliminary injunction is to maintain the status quo pending trial, not to rule on the merits of the entire case, the ruling states.

“The current standard for preliminary injunctions is so low that it’s not really a standard at all,” said Emilee Cantrell, spokesperson for the Department of Justice. “As a result, constitutional laws like these may be blocked for months – or even years – before courts ever decide cases on the merits.”

“Armstrong was wrong the day it was decided and its use in delaying these commonsense laws that protect the health and safety of Montana women makes that even more clear,” Cantrell said in a statement.

The case had been fully briefed and submitted to the Montana Supreme Court on May 11. The U.S. Supreme court overturned Roe vs. Wade on June 24.

Soon after that, Attorney General Austin Knudsen and later Gov. Greg Gianforte asked the state Supreme Court to accept additional briefings in the request to overturn the Armstrong ruling.

“The court recognizes the potential implications of the Dobbs decision and the desire to afford full opportunity to be heard. But, for reasons explained in the opinion — which was in its final stages of review when the governor filed his motion — the appeal of this preliminary injunction is not the time for those arguments to be made and considered,” Justice Beth Baker wrote in the 5-0 ruling.